JUDGMENT P.V. Hardas, J.: 1. Criminal Appeal No. 172 of 2011 has been filed by the appellant, who stands convicted for an offence punishable under Section 376 of the Indian Penal Code and sentenced to R.I. for eight years and to pay fine of Rs.10,000/-, in default of which to undergo further S.I. for six months, with a further direction that out of the amount of fine of Rs.10,000/-, an amount of Rs.7 000/- be given to the victim, by the Ad hoc Assistant Sessions Judge, Sangamner, by judgment, dated 17.3.2011, in Sessions Case No. 54 of 2009, questioning the correctness of his conviction and sentence. Criminal Appeal No. 472 of 2011 has been filed by the appellant/State seeking enhancement of the sentence passed against the respondent/accused. Since both these appeals arise from the same judgment of the trial court, these appeals are decided by this common judgment. 2. Facts, in brief, as are necessary for the decision of this appeal, may briefly be stated thus : PW9 Police Constable Chandrakant Dhadage, who was attached to Sangamner Taluka police station and was on duty on 20.9.2009, recorded the report of PW1 Dhondiram, father of the victim. The report of PW1 Dhondiram is at Exh.30. On the basis of the afore said report, PW9 Police Constable Dhadage registered an offence vide Crime No. 264 of 2009 under Sections 376, 504 and 506 of the Indian Penal Code. Upon registration of the offence, PW9 police constable Dhadage reported the registration of the offence to the superior police officers under report at Exh.74. 3. PW8 P.S.I. Shaikh Gani, who was also attached to Sangamner Taluka police station, was entrusted with the investigation of Crime registered by PW9 Police Head Constable Dhadage. On being entrusted with the investigation, PW8 P.S.I. Gani directed that the victim be produced before the Rural Hospital at Sangamner for medical examination, and accordingly, addressed a requisition at Exh.46. After the medical examination of the victim, PW8 P.S.I. Gani proceeded to the scene of the incident and in presence of panchas drew the scene of incident panchanama at Exh. 35. He recorded the statements of the witnesses and arrested three accused including the appellant on the same day at about 9.10 p.m. The Medical Officer, Rural Hospital, Sangamner had referred the victim to the Medical Officer, Civil Hospital, Ahmednagar for medical examination along with letter Exh.69. 35. He recorded the statements of the witnesses and arrested three accused including the appellant on the same day at about 9.10 p.m. The Medical Officer, Rural Hospital, Sangamner had referred the victim to the Medical Officer, Civil Hospital, Ahmednagar for medical examination along with letter Exh.69. The accused were referred for their medical examination under requisition at Exh.48. The blood samples, etc. of the accused and the victim were referred to the Chemical Analyser on 27.10.2009 under requisition at Exh.72. On 20.10.2009 the victim was referred to the Civil Hospital, Ahmednagar. Further to the completion of investigation, charge sheet against the accused was submitted. 4. On committal of the case to the court of Sessions, the trial Court vide Exh.14 framed charge against the accused for offence punishable under Sections 376, 504 and 506 r/w 34 of the Indian Penal Code. 5. The accused denied their guilt and claimed to be tried. 6. Prosecution, in support of its case, examined nine witnesses; while the defence of the accused was of denial. 7. The trial Court, upon appreciation of the evidence, convicted and sentenced the appellant (original accused no.1) as afore stated; while acquitting original accused nos. 2 and 3. 8. The State, being aggrieved by the sentence passed against the appellant has filed an appeal seeking enhancement of the said sentence. 9. In order to effectively deal with the submissions advanced before us by Shri S.T.Shelke, learned counsel for the appellant and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. 10. Prosecution has examined PW5 Dr.Raju Kale, who was attached to the Rural Hospital at Sangamner. He states that on 20.9.2009 at about 1.55 p.m. the victim was produced before him. Upon examination, he noticed that she was pregnant and was 19 years of age and was unmarried. On external examination, vagina admitted two fingers easily; while cervis admitted the tip of finger and there was bleeding. He also noticed tear of the hymen at multiple sites with old healed scars (tears). He also found that there were no injuries on the victim or on her private parts. He had drawn the blood samples and had obtained the sample of nails of the fingers and the vaginal swab. He had referred the victim to the Civil Hospital, Ahmednagar. He states that the victim had undergone sonography at the Civil Hospital, Ahmednagar. He also found that there were no injuries on the victim or on her private parts. He had drawn the blood samples and had obtained the sample of nails of the fingers and the vaginal swab. He had referred the victim to the Civil Hospital, Ahmednagar. He states that the victim had undergone sonography at the Civil Hospital, Ahmednagar. Upon perusal of the certificate of the Civil Hospital, Ahmednagar, he had accordingly issued his certificate at Exh.47. PW5 Dr. Kale further states that on 20.9.2009, he had examined the appellant and had issued a certificate in respect of the examination of the appellant at Exh.49. He had drawn the sample of semen and blood and sample of the finger nails and pubic hair. PW5 Dr. Kale has also admitted that the victim was mentally retarded person. 11. In cross-examination, he has admitted that Manisha was capable of offering resistance. He has also admitted that he had not collected her underwear or the clothes which she had worn on the day of the incident. He has also admitted in cross-examination that at the time of examination of the victim, the abortion was in process. He has also admitted that in order to admit two fingers easily in the vagina, such woman should have sexual intercourse at least 10 to 15 times. 12. Prosecution has also examined PW6 Dr.Ashok Karhale, who was attached to the Civil Hospital, Ahmednagar. He states that he had examined the victim, who was 19 years of age and was mentally retarded. On examination, he had found that her mental age was not appropriate with her chronological age. He had found that her mental retardation was moderate with the disability of more than 40 per cent. The certificate issued is at Exh. 52. According to Dr. Kale, the mental age of the victim was that of eight year old normal child. 13. In cross-examination, he has admitted to have completed his specialization degree course in psychiatric in Y.M.C. Hospital at Pune. He has admitted that he had assessed the percentage of the mental retardation of the victim on the basis of the history as well as on the basis of examination of the victim done by him. 14. Prosecution has examined PW1 Dhondiram, father of the victim (whose name is deliberately withheld) and the first informant. He has admitted that he had assessed the percentage of the mental retardation of the victim on the basis of the history as well as on the basis of examination of the victim done by him. 14. Prosecution has examined PW1 Dhondiram, father of the victim (whose name is deliberately withheld) and the first informant. PW1 Dhondiram states that he was residing with his wife PW4 Shaila and his five children. The victim is the eldest daughter and she was mentally retarded. He states that the accused/appellant is his nephew. PW1 Dhondiram further states that on 18.9.2009 his wife PW4 Shaila had informed him about bleeding from the private part of the victim. Dhondiram states that he and his wife PW4 Shaila had taken Manisha in confidence and had inquired from her as to what had happened. The victim had informed them by making gestures that the appellant by removing her clothes had committed rape on her about two months prior. The victim had also communicated that on 18.9.2009 the appellant had kicked the victim on her stomach on account of which she had started bleeding from her private part. Dhondiram further states that he and his wife had gone to the house of his brother PW3 Babasaheb and had informed him about what had narrated by the victim. Dhondiram states that on the next day, he, accompanied by his other brothers, had gone to the house of the father of the appellant and had informed him that the appellant had committed the rape on the victim. The father of the appellant had abused Dhondiram and had threatened him. Dhondiram states that thereafter a report was lodged at the police station on 20.9.2009. Dhondiram has admitted his signature on the report at Exh.30. 15. In cross-examination, omissions have been elicited that he had not stated that he had studied upto 7th standard and that the victim was mentally retarded since birth. Omission has also been elicited that he had not stated in his report that the appellant had absconded with his cousin. Omission has also been elicited that he had not stated that the bleeding from the private part of the victim contained the parts of flesh also. Omission has also been elicited that he had not stated in his report that the appellant had absconded with his cousin. Omission has also been elicited that he had not stated that the bleeding from the private part of the victim contained the parts of flesh also. Omission has also been elicited that he had not stated in his report that the appellant had committed the rape on the victim in the shed which was used for tying goats and his residential house. Omission has also been elicited that he had not stated that the appellant had kicked the victim on her stomach on account of which the victim started bleeding from her private part. Omission also has been elicited in respect of Dhondiram telephoning his brothers. 16. In further cross-examination, he has admitted that on 18.9.2009 he had not taken the victim to any doctor after learning about the bleeding from her private part. He has admitted that the victim had slept with her brother Vishal and her sister Sapana at night. He has admitted that the family members of the appellant were on visiting terms. He has further admitted that prior to two months on 18.9.2009 the victim had not complained against the appellant. He has admitted that there are two latrines near the house of the appellant, one for gents and the other for ladies. He has admitted that the family of the appellant consists of about 12 persons and has also admitted that from his house the latrines in the house of the appellant were visible. He has denied the suggestion that in order to grab the land belonging to the family of the appellants a false case had been foisted against the appellant/accused. 17. Prosecution has examined PW4 Shaila, mother of the victim and wife of PW1 Dhondiram. She corroborates PW1 Dhondiram in respect of noticing bleeding from the private part of the victim and inquiring from the victim the reason for the bleeding. The evidence of PW1 Dhondiram stands fully corroborated by the evidence of PW4 Shaila. 18. In cross-examination, she has admitted that the victim was not taken to a Medical Officer when bleeding was noticed from her private part. She has also admitted that she had not inquired from the victim about the discontinuance of her monthly menstrual cycle. The evidence of PW1 Dhondiram stands fully corroborated by the evidence of PW4 Shaila. 18. In cross-examination, she has admitted that the victim was not taken to a Medical Officer when bleeding was noticed from her private part. She has also admitted that she had not inquired from the victim about the discontinuance of her monthly menstrual cycle. Omission has been elicited that she had not stated that parts of the flesh were also noticed in the bleeding from the private part of the victim. Omission has been elicited that she had not stated in her previous statement by reference to the tin shed used for tying goats as the place where rape was committed by the appellant. 19. Prosecution has also examined PW3 Babasaheb, brother of PW1 Dhondiram and uncle of the victim. He states about being informed by PW1 Dhondiram in respect of the incident on 19.9.2009. He also states about accompanying PW1 Dhondiram to the house of father of the appellant and Dhondiram complaining about the rape committed by the appellant. PW3 Babasaheb deposes that father of the appellant had threatened them and had told them to do what they wanted. Babasaheb stated that thereafter a report against the appellant was lodged. 20. Prosecution has examined PW7 Bhausaheb, an interpreter, who had interpreted the evidence of the victim. The victim, apart from being a mentally retarded girl, could barely speak a few words. The interpretor, who had done his diploma in special education in Mental Retardation and who could correctly interpret the sign language as well as the gestures, had interpreted the evidence of the victim who had stated that the appellant had caught her hand and had taken her inside the latrine and after pressing her breast and after removing her clothes had committed the forcible sexual intercourse with her. The trial court has recorded in detail the gestures of the victim in respect of the forcible sexual intercourse. The victim had also stated that the appellant had threatened her with assault. The victim had also stated that she had informed her parents, when they had asked her, that the appellant had committed sexual intercourse with her. 21. In cross-examination, the interpreter has deposed that there are three categories of mentally retarded persons. The victim had also stated that the appellant had threatened her with assault. The victim had also stated that she had informed her parents, when they had asked her, that the appellant had committed sexual intercourse with her. 21. In cross-examination, the interpreter has deposed that there are three categories of mentally retarded persons. In the first category, the mentally retarded persons have their IQ below 20 per cent as profound and 90 to 92 per cent persons of this category do not survive for long. The second category relates to 21 to 34 per cent of IQ of mentally retarded persons, who are in severe mental retardation category. The third category relates to 35 to 49 per cent of IQ of mentally retarded persons, who are in moderate mental retardation category and these persons can perform household work under guidance. It is also admitted in cross-examination that such persons can earn their livelihood on learning any trade, but such persons after learning have tendency to forget after four hours and they have to be taught or guided again. 22. In cross-examination, the victim has admitted that she was not doing any household chore nor she was providing fodder or water to the animals. She was asked the question whether her mother was asking her the name of the person who had committed wrong with her for the past two months and the victim waived her index finger of right hand to mean, no. She was asked the question whether she knows the difference between day and night and she was also asked whether the incident of sexual intercourse took place during the night, to which she replied in the affirmative. She has also answered in affirmative that during abortion her mother and her father were asking her as to who was responsible for the pregnancy. She has answered in the affirmative to the question as to whether her parents and her uncle Ramdas had asked her to tell the name of the appellant to the police in the police station. She was then given the suggestion that the appellant had not committed the sexual intercourse, which she denied. She was also given a suggestion that the appellant had not kicked her on her stomach which had caused bleeding, to which she replied in the negative. 23. She was then given the suggestion that the appellant had not committed the sexual intercourse, which she denied. She was also given a suggestion that the appellant had not kicked her on her stomach which had caused bleeding, to which she replied in the negative. 23. Shri S.T.Shelke, learned counsel for the appellant has urged before us that the conduct of the parents of the victim is extremely suspicious, particularly the conduct of PW4 Shaila, who had not questioned the victim in respect of the discontinuance of her monthly menstrual cycle. It is also urged before us that the alleged place of the incident i.e. the latrine (toilet) and the house are visible from the house of PW1 Dhondiram and the evidence of the victim, therefore, appears to be incredible that the appellant had committed the sexual intercourse with her. It is also urged before us that the victim was capable of resistance, and therefore, it is inconceivable that the appellant alone had committed the rape on the victim. It is also urged before us that the evidence of the victim is falsified by her admission that sexual intercourse was performed at night and that she was tutored by her parents to give the name of the appellant at the police station. 24. The learned A.P.P. supported the finding arrived at by the trial court. 25. As per the evidence of the prosecution, the mental age of the victim was eight years though physically she was a grown up girl of nineteen years. All her sexual characteristics were developed but she continued to be a girl of eight years. The admissions given by the victim in the cross-examination and which have been interpreted by the interpretor have to be understood as answers given by eight year old girl. On noticing the bleeding from the private part of the victim, PW1 Dhondiram and PW4 Shaila had taken the victim in confidence and had inquired from her the reason of the bleeding. The immediate disclosure was made by the victim that forcible sexual intercourse had been performed by the appellant. She had in no uncertain terms named the appellant as a culprit who was responsible for the bleeding from her private part. The victim had also informed her parents that the appellant had kicked the victim on her stomach, which has caused bleeding. She had in no uncertain terms named the appellant as a culprit who was responsible for the bleeding from her private part. The victim had also informed her parents that the appellant had kicked the victim on her stomach, which has caused bleeding. The spontaneous reaction of PW1 Dhondiram is evident as he telephoned his brother and thereafter had gone to the house of the appellant and had informed the father of the appellant. It was on the next day that the report came to be lodged. We, therefore, find that the stray admission of the victim that she was asked by parents to state the name of the appellant in the police station would not amount to tutoring of the victim. Similarly, the admission on her part that the sexual intercourse was performed at night would not in any manner affect her credibility. The victim had no reason whatsoever for falsely implicating the appellant. There is nothing on record to indicate that a false case had been foisted against the appellant. Merely because PW4 Shaila had not questioned the victim in respect of her discontinuance of monthly menstrual cycle would not lead to an irresistible inference that Shaila and Dhondiram, for reasons best known to them, had decided to falsely implicate the appellant. The medical evidence of the victim clearly indicates that forcible sexual intercourse had been performed with her and that she was pregnant. The immediate reaction of the victim in naming the appellant is extremely significant and in the absence of any other evidence, we find that implicit reliance can be placed on the testimony of the victim and her parents in respect of spontaneous disclosure of the name of the appellant. 26. Though the victim was capable of resistance, yet no resistance was offered by the victim. It would not lead to an inference that the victim had given her consent. In any event, the consent of a mentally retarded girl cannot amount to a preconsent in law. For giving consent, a person should be aware about the nature of the act and the consequence of the act. The victim was of eight years age, though physically she was nineteen years of age. Consequently, she would not understand what a sexual intercourse was or the implications of sexual intercourse. For giving consent, a person should be aware about the nature of the act and the consequence of the act. The victim was of eight years age, though physically she was nineteen years of age. Consequently, she would not understand what a sexual intercourse was or the implications of sexual intercourse. The nonresistance or passive submission of the victim to the forcible sexual intercourse cannot in any manner be interpreted to mean either a consent on the part of the victim or a fabrication of the entire prosecution case. 27. Upon appreciation of the evidence of the prosecution as well as the submissions advanced before us by the learned counsel for the appellant, according to us, the prosecution has proved the evidence against the appellant beyond reasonable doubt. The appeal filed by the appellant questioning his conviction and sentence, therefore, is liable to be dismissed. 28. Turning to the appeal filed by the State, which seeks enhancement of the sentence, the learned A.P.P. has urged before us that the appellant had taken the advantage of the mental retardation of the victim and had performed sexual intercourse with her. The A.P.P. has, therefore, urged for awarding maximum sentence i.e. life imprisonment. 29. The sentence awarded to the respondent/accused is R.I. for eight years. The sentence provided by the statute is minimum sentence of seven years which may extend upto imprisonment for life. The sentence awarded by the trial court, therefore, is not grossly disproportionate to the heinousness or seriousness of the offence. Awarding sentence commensurate with the crime which is proved is in the domain of the trial court. We do not notice that the sentence is grossly disproportionate to the offence which is alleged. In the present case, according to us, the sentence awarded by the trial court is commensurate with the gravity and seriousness of the offence. We do not notice any perversity in the award of the sentence, and consequently, the appeal for enhancement of sentence filed by the State also deserves to be dismissed. 30. Accordingly, Criminal Appeal No. 172 of 2011 is dismissed confirming the conviction and sentence of the appellant. Criminal Appeal No. 472 of 2011 filed by the State seeking enhancement of the sentence is also dismissed.